Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pennsylvania Liquor Control Board v. Melting Pot, Inc., No. SA130-1979.
J. Leonard Langan, Assistant Attorney General, with him Kenneth W. Makowski, Acting Chief Counsel, and Edward Biester, Jr., Attorney General, for appellant.
Michael J. Murphy, with him Robert T. Kane, for appellee.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Concurring and Dissenting Opinion by Judge MacPhail.
[ 55 Pa. Commw. Page 419]
The Pennsylvania Liquor Control Board (LCB) has appealed from an order of the Common Pleas Court of Allegheny County which sustained the appeal which Melting Pot, Inc. (licensee) had taken from the LCB's imposition of a fine upon licensee for allegedly permitting gambling on the premises of licensee's bar.*fn1
The only question is whether the common pleas court erred as a matter of law in concluding that the LCB's proof of gambling was insufficient on the ground that certain statements, offered to show the gambling nature of the transaction, were hearsay.
In the de novo hearing in the common pleas court, the LCB agent testified that he observed a bar patron,
[ 55 Pa. Commw. Page 420]
after playing a pinball machine, tell a waitress that "he had hit for 34 games on the pin-ball machine." The LCB agent also testified that, after the waitress had relayed the information to the bar manager, the manager viewed the 34 games registered on the machine (as did the LCB agent himself) and then gave $3.40 to the patron and told the patron "to knock the games off the pin-ball machine," namely, to cause the game indicator to "rack off" and go back to zero.
In offering the testimony, LCB counsel expressly stated that he was not offering the testimony to prove the truth of the statements, but rather to show that a "man was gambling."*fn2
We have little doubt but that gambling talk, when offered to characterize a transaction as gambling, is not hearsay and is therefore admissible as substantive proof. A strong and common example is testimony of raiding police officers concerning their receipt of telephone calls placing bets, offered to identify the raided premises as a gambling place, which is admissible as not being hearsay. Commonwealth v. DiSilvio, 232 Pa. Superior Ct. 386, 335 A.2d 785 (1975). Thus, here, the patron's statement, not being offered to prove the fact of winning or the number of games won, constituted the "verbal part of the act," as characterized in J. ...